Tag Archives: SOPA

You can’t make this up. Law 360 is reporting that the International Trade Commission (ITC) has been denied authority over digital goods.

The Federal Circuit said Thursday that it wouldn’t reconsider its decision that the International Trade Commission lacks the authority to block the import of digital files, drawing a lengthy dissent from one of its judges.

Keep in mind, the same people now opposed to the ITC having this authority are the same who argued in favor of the the ITC doing so as an alternative to SOPA called the Open Act.

When advocating for the OPEN Act as a good alternative to SOPA and the PROTECT IP Act, the bill’s sponsors touted the ITC as being a great venue for tackling the problems of foreign rogue sites. Among the claimed virtues were its vast experience, transparency, due process protection, consistency, and independence:

For well over 80 years, the independent International Trade Commission (ITC) has been the venue by which U.S. rightsholders have obtained relief from unfair imports, such as those that violate intellectual property rights. Under Section 337 of the Tariff Act of 1930 – which governs how the ITC investigates rightsholders’ request for relief – the agency already employs a transparent process that gives parties to the investigation, and third party interests, a chance to be heard. The ITC’s process and work is highly regarded as independent and free from political influence and the department already has a well recognized expertise in intellectual property and trade law that could be expanded to the import of digital goods.

The Commission already employs important safeguards to ensure that rightsholders do not abuse their right to request a Commission investigation and the Commission may self-initiate investigations. Keeping them in charge of determining whether unfair imports – like those that violate intellectual property rights – [sic] would ensure consistent enforcement of Intellectual Property rights and trade law.

Some of the groups now arguing that the ITC shouldn’t have jurisdiction over digital goods openly supported the OPEN Act. Back in late 2011, the EFF stated that it was “glad to learn that a bipartisan group of congressional representatives has come together to formulate a real alternative, called the OPEN Act.” The EFF liked the bill because the “ITC’s process . . . is transparent, quick, and effective” and “both parties would have the opportunity to participate and the record would be public.” It emphasized how the “process would include many important due process protections, such as effective notice to the site of the complaint and ensuing investigation.”

Google likewise thought that giving the ITC jurisdiction over digital goods was a great idea. In a letter posted to its blog in early 2012, Google claimed that “there are better ways to address piracy than to ask U.S. companies to censor the Internet,” and it explicitly stated that it “supports alternative approaches like the OPEN Act.” Google also signed onto a letter promoting the virtues of the ITC: “This approach targets foreign rogue sites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established International trade remedies to bear on this problem.”

In fact, when the lawsuit was first announced, The Trichordist rather humorously (though not at all facetiously) announced an “office betting pool” as to how soon the Electronic Frontier Foundation would file an amicus brief on behalf of Aurous. And while no serious IP attorney may reasonably defend Aurous against the infringement claims, that hasn’t stopped the EFF from repeating the latest mantra of Internet industry defenders: That [insert plaintiff here] is behaving as though SOPA became law. Although the EFF has not filed an amicus brief or anything so official on behalf of Aurous, here’s the tweet they sent out, as Ellen Seidler reports on Vox Indie:

While, all this SOPA chatter may be pretty good spin—and a great way to belabor the narrative that rights holders are just insidious, draconian, evildoers hating on freedom—the references to SOPA are entirely specious. I mean not even close.

Bottom Line: Aurous is a Domestic Business

SOPA/PIPA were exclusively written to target foreign-based piracy sites that are beyond the reach of U.S. jurisdiction for criminal proceedings, with the objective of starving these sites of both U.S. traffic and U.S. revenue.

The deceptive premises of the NYTimes Editorial “Keep the Internet Free of Borders” 8/10, begin with the title, which leads one to believe that this ITC case will take something away that actually exists. In fact, the Internet is not now and has never been, “free of borders”. Copyright law prohibits unlawful distribution of copyrighted works outside national borders and has strict provisions on import and export of copyrighted works. The Internet has never been free of copyright law, because copyright is nation-based. That’s why a new treaty was adopted to address the cross-border issue of distribution of works for blind and reading impaired persons- the Marrakesh Treaty adopted in 2012-, and why a global treaty for libraries is now under discussion: to make cross-border distribution legal in certain cases, precisely because right now it’s restricted. Even Google knows that the Internet has national borders. It found a way to respect them for Google Books- a mechanism to prevent export of copyrighted works to other countries. There are patent rules too. All universities have policies regarding import and export of patented material. Export control rules and guidelines already cover patented material/trade competition and have NEVER been restricted to physical goods.

When the editorial extrapolates its argument to the record industry, it goes even further afield. ” The I.T.C. has long had the power to forbid companies from importing physical goods like electronics, books and mechanical equipment that violate the patents, copyrights and trademarks of American businesses…The commission’s order to ClearCorrect was the first time it had sought to bar the transfer of digital information.”

The Times takes the RIAA to task for supporting the decision: “Groups like the…Recording Industry Association of America are supporting the commission’s view… that, as trade increasingly becomes digital, the definition of “article” should include data.”

Yet when there was actually legislation on the table supporting the alternative remedies to ITC intervention that the editorial now claims to favor, the NY Times took the exact opposite position ( Beyond SOPA 1/28/12), and supported empowering the ITC: “By giving the International Trade Commission sole authority to determine infringement, [the OPEN Act] would…[give] copyright holders powerful new tools to protect themselves [while] protecting legitimate expression on the Web from overzealous content owners.

Funny how ‘Times’ change.

In any case, the alternate remedies proposed in last weeks editorial simply don’t apply to recording artists works. “There are far better ways to [protect…patents and copyrights]….Align could sue ClearCorrect and seek damages for patent infringement. Or the company could ask a judge to order ClearCorrect to stop selling products made using the information contained in the files.”

Sounds great: but asking a judge to order an infringing company to stop selling [physical] products made using information contained in infringing files’ isn’t relevant for people whose product is the files themselves. And of course, suing companies profiting from infringement is precisely what musicians can’t do, thanks to the Safe Harbor Clause of the DMCA. That clause exempts online businesses from the normal responsibility of companies for violations of the law occurring on their premises.

Is the NY Times now going to support ending Safe Harbor protection for companies whose business models are based on aiding, abetting, and profiting from infringement? Such a position would be the only way musicians could have access to its suggested remedy.

We certainly hope so, because while congress has failed to effectively regulate the unfair black market destroying the value of our work, our industry has crashed and our livelihoods are suffering.

Our problem isn’t new technology itself, but the failure of government to regulate new and unfair forms of exploitation. The internet has borders: it is bound internationally by the laws of sovereign nations, and internally by laws which protect the rights of citizens. It also has hugely powerful corporations attempting to violate those borders on a massive scale in order to create consumer ‘facts on the ground’ which render those rights politically un-enforceable.

International borders aren’t the only boundaries threatened by big tech’s drive to profit from infringement: the consequences of the failure of government to stand up to this corporate manipulation won’t stay neatly contained within the music industry. Nor will the effective nullification of citizens rights stop at those protecting artists. Its a slippery slope, baby.

Never wanting to lose an opportunity to be bizarrely two-faced, Google is sending around a little graphic today to all you GMail users implying that stopping SOPA in January of 2012 actually enabled creativity to continue to thrive on the Web. Never mind that nothing in SOPA could have stopped you or me or any other would-be creator from uploading our works, ideas, or captured events to the Web; that’s just pesky reality.

But Google isn’t satisfied just to effect public policy in its own interests, it also wants to behave like the abusive and negligent father, who creepily shows up with a smile and a hug when his kid wins an award or becomes famous.

After all, this week isn’t just the anniversary of SOPA Blackout Day, it’s also the week Google received its 100 millionth takedown notice from recording artists who would rather not have their works exploited without permission or compensation. So, the whole, “we protected creativity together” message just kinda makes the skin crawl. Y’know?

AGCOM, an independent Electronic Communications Authority of Italy, devised various measures to bring down the pirate websites and their owners. The measures put forward have been unanimously approved. The new system that ensures the fast removal of copyrighted content by hosts and blocking of various file-sharing websites will be implemented on March 31, 2014.

In the past, Italy has emerged as a nation that is taking proactive actions to tackle pirate sites and other online piracy issues. Numerous leading torrent websites like Kicka** Torrents and The Pirate Bay are blocked at the Internet Service Provider (ISP) level after orders from different courts.

We’ve heard a lot about how protecting artists rights would “break the internet”, turns out the internet seems to be doing just fine. So much for all of the chicken little fear mongering from Silicon Valley interests that have been profiting by illegally exploiting artists and creators for over a decade.

The world is waking up. Dear Larry, the internet is not breaking, it’s time to “get over it.”

A court in France has ordered Google, Microsoft and Yahoo to block 16 video-streaming sites from their search results.

The High Court in Paris ruled the websites were dedicated to the “distribution of works without consent of their creators”.

“Search engines are incredibly skilful, yet they are still leading consumers to illegal money-making sites even when the searcher is seeking legal content online,” said Chris Marcich, president of MPA in Europe, Middle East and Africa.

“The present situation is confusing for consumers, damaging the legal download market and legitimising copyright theft. The decision in France clearly is a step in this direction.”

Several internet service providers were also ordered to block the sites.

Websites illegally hosting copyrighted content have been targeted by City of London Police.

“Operation Creative is being run… to really get to grips with a criminal industry that is making substantial profits by providing and actively promoting access to illegally obtained and copyrighted material,” said Supt Bob Wishart.

The scheme encourages offenders to change their behaviour so that they are operating within the law, he added.

“However, if they refuse to comply we now have the means to persuade businesses to move their advertising to different platforms and, if offending continues, for registrars to suspend the websites,” he said.

THREE major music companies have been granted orders which will allow internet service providers here to block access to a file-sharing website as part of efforts to prevent “wholesale copyright theft” on “a grand scale”.

The judge was satisfied many of those were engaged in copyright infringement, devastating the ability of a generation of creative people to make a living from their talents.

With the closure of Hotfile, questions are raised about what this means for content creators and the cyberlocker industry. Here are a few likely outcomes.

The judge in the case also ordered Hotfile that, if it wishes to remain open, it has to use “digital fingerprinting” to filter out infringing works. However, Hotfile, either unable or unwilling to comply with that request, has decided to shut down its site, effective immediately.

Hotfile’s closure is easily the biggest case of a cyberlocker being forced offline through legal action since Megaupload in January 2012. However, with nearly two years passed since Megaupload’s shuttering, the Web, especially for illegal downloads, is already a very different place.

During the protests against the Stop Online Piracy Act (SOPA), critics of the legislation portrayed its process of identifying foreign black market domains and then blocking them from gaining easy profits from, and access to, the US online audience, as “censorship” — full stop.

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It bothers me that representatives from Google or the EFF, Reddit, etc. are so quick to lump in the attempt to protect artists rights with the political censorship of China or Iran. It is entitlement of the privileged at its worst and demonstrates to me how desperate some people are to excuse freeloading by any means necessary. But, the wonders of technology simply do not excuse clear cases of exploitation.

This story originally ran on Constitution Day, but we just got hipped to it now. Worth the read.

Cyber-piracy increasingly costs the U.S. economy money that instead of creating and supporting jobs goes into the pockets of criminals. The government must act, and swiftly, by exercising its constitutional responsibility to ensure that this trend is reversed. This may require breaking some new ground and should be done only after careful, principled debate, with respect for liberty and adherence to our other, equally important, constitutional rights.

If the framers could understand this matter in the eighteenth century, we must believe the current Congress can grapple with it today. Previous efforts to update our intellectual property protection system were defeated in a flurry of misinformation. The proposed legislation may have been opaque and overly broad, but the concerns expressed by many conservatives and libertarians were overstated.

On this Constitution Day, let’s remember that even in the Founder’s concept of a limited federal government, it is the proper obligation of that government to secure the property of its citizens against lawlessness. Protecting intellectual property is a property rights issue. There is a difference between liberty and lawlessness: We should favor the former and oppose the latter. On Constitution Day we should think about the protection of intellectual property rights on the Internet as a logical, contemporary extension of the basic Constitutional rights of authors, scientists and inventors that our framers set forth so plainly two and a quarter centuries ago.

Dan Ariely
– How to Stop Illegal Downloads“Before it was my book being illegally downloaded, I was more on the “Information wants to be free” end of the spectrum. The sudden, though predictable, shift in my feelings when I found my own work being downloaded for free was a jarring experience.”

Digital Trends:
– Sorry, Internet, SOPA had zero effect on election day results“Of the 24 House Members up for reelection who co-sponsored or otherwise supported the highly contentious anti-piracy legislation, all but three won reelection on Tuesday. This includes Republican Rep. Lamar Smith, of Texas, SOPA’s author and chief co-sponsor who became the Internet’s Enemy No. 1”